Publication: Mail and Guardian Issued: Date: 2009-04-07 Reporter: Adriaan Basson Reporter: Pearlie Joubert

The NPA’s Call just Scrapes Home

 

Publication 

Mail and Guardian
Date

2009-04-07
Reporter Editorial



By the narrowest of margins, but by a margin nonetheless, the National Prosecuting Authority (NPA) did enough yesterday to justify its decision to drop its charges against African National Congress (ANC) president Jacob Zuma.

In doing so, however, it may have spared Zuma a trial, but it has damned him and the ANC to the enduring hell of suspicion and doubt. The acting NPA boss, Mokotedi Mpshe, went out of his way at the start of his announcement to make clear that on the substantive merits of the case against Zuma he had heard nothing which, in his words, would “militate against a continuation of the prosecution”. South Africans can take comfort in that *1, even as many will question the wisdom of the decision Mpshe finally arrived at.

For even as he was setting Zuma free, it seems to us that Mpshe was planting a cancer in the coming Zuma presidency. Zuma faced 16 charges of fraud and corruption and racketeering arising from his relationship with convicted fraudster Schabir Shaik. They involved more than 1000 payments to Zuma by Shaik of more than R4m as Shaik tried to enlist Zuma’s support for his business ventures and, as the Shaik trial clearly demonstrated, with considerable success.

Zuma is not innocent of those charges, as he and his supporters will now claim. He is merely not legally guilty of them. But they will dog him for the rest of his life. Because you are not prosecuted for taking a backhander, it does not mean you didn’t take the backhander. By escaping prosecution for corruption on a technicality, Zuma is going to have a dreadful time convincing all but the most doting follower that his promised war on corruption in government is indeed a serious proposition. The effect on the country will be more cynicism and less commitment.

That said, it would be wrong not to measure the positive effects of the NPA decision. It removes an issue from South African life that was threatening to consume the entire body politic and is thus a considerable relief to the whole nation. Even had the NPA not dropped the charges, it is quite likely, given the evidence Mpshe presented yesterday, that a judge in any trial of Zuma would have thrown the case out. So we have been spared the time and agony between now and then *2.

It also removes the main weapon with which Zuma and the ANC have been able to fight off opponents ­ Zuma’s victimhood. Free of the charges, it will be easier from now to judge him for what he does rather than for what is being done to him.

But what a technicality! Mpshe released a string of transcripts of recordings of phone calls and SMS exchanges made just before and just after the historic ANC conference at Polokwane in December 2007. It was at this conference that Zuma defeated former president Thabo Mbeki for the leadership of the ANC.

Mbeki had stood, against the advice of many, including this newspaper, for a third term as party leader, and was intent, once he won, to ensure the elevation of his deputy, then deputy president Phumzile Mlambo-Ngcuka, to the presidency while he ran the party ­ it being accepted that the government does the bidding of the party.

The transcripts make it clear that Zuma’s contention that he was a victim of a political conspiracy were well-founded. And they feature two main protagonists ­ one is the former head of the Scorpions (the DSO, the investigating arm, now being disbanded, of the NPA) Leonard McCarthy and the other is Mlambo-Ngcuka’s husband, Bulelani Ngcuka, a former head of the NPA and now a businessman.

To say that McCarthy and Ngcuka were conspiring would be an understatement. The recordings show their matter revolved around when to recharge Zuma ­ before or after the Polokwane conference. There was a debate about this in the Mbeki “camp” at the time. If you charged Zuma before the conference would you not provoke support for him? Other people around Mbeki wanted him charged before the conference. Here’s a sample, from an intercept dated December 12 2007, about four days before Polokwane:

Ngcuka : “As long as you don’t do it this weekend.”

McCarthy : “If we hold back, it will be because clever people like you and others are saying to us that the country needs cool heads, but I would hate to be wrong later.”

Ngcuka a: “Just don’t do it this weekend.”

McCarthy : “It might change.”

Ngcuka : “I can’t keep an open mind. You can’t do it this weekend. Our minds won’t change.”

Our minds? It is safe to assume that at this time Ngcuka was seeing rather a lot of Mbeki’s deputy, and it can reasonably be assumed that she would not be misrepresenting her boss’s thinking in their dinner table or pillow talk. Ngcuka was clearly giving the chief investigator in the Zuma case *3 instructions, and it is not unreasonable to assume he would have known that Mbeki at the very least approved of them.

It is understandable that opposition parties, just a few weeks away from a general election, have been angered by the decision to drop charges. And it is true that Mpshe could just as easily have gone to court with his case. Even had he known the tapes would be brought up by the Zuma defence, it might have been worth it to have heard McCarthy and Ngcuka under cross-examination.

With any luck, they would also have called Mbeki, who could have explained many of McCarthy’s references in other calls to “the man” or the “number one”. In one voicemail after Mbeki lost Polokwane, McCarthy says that he “saw the man on Friday evening, we are planning a comeback strategy and once we have achieved that we will clean up all around us, my friend”.

But if McCarthy and Mbeki were even then planting the seeds of a new political party as they plotted a legal way forward against Zuma, it is unlikely a judge would have allowed the case to continue in the face of such blatant evidence of procedural malfeasance. Yes, Mpshe could have decided to press ahead with the charges, but it is quite likely he would have lost in court.

No doubt McCarthy’s role in this sorry affair will be investigated. He now works in an anticorruption role at the World Bank. Ngcuka was not a public servant at the time the recordings were made. He is probably in the clear, though he may require extra personal security following yesterday’s revelations by Mpshe. Quite how the intercepts were made and how they ended up in the hands of Zuma’s team is also worthy of investigation.

But the next chapters in this story are Jacob Zuma’s to write. He has escaped prosecution and been proved right about the conspiracy against him. He will feel vindicated, and it would be churlish not to congratulate him. He will be this country’s fourth democratic president, and he might be a very good one. We will know in five years. During that time there is a mountain of work to do. SA is coming apart at the seams, and it must be fixed. That job can be done only by a strong, confident leader surrounded by clever and hard-working people.

Zuma might just be the man. But he will need to deal decisively with the lingering doubts and suspicions that Mpshe’s decision will have left hanging over him and his party.

The best way to do that would be, early in his presidency, to announce the creation of an independent judicial inquiry into the strategic arms deal that has so blighted our public life. It must be done if we are to heal.

With acknowledgements to Mail and Guardian.


*1      Wrong, there is no comfort in that.


*2      Who wrote this bullshit. Surely not Peter Bruce?

This is simply no argument at all.

Actually I am wrong, this is what is known at rhetorical argument.

But that is not serious stuff.


*3      More nonsense. The lead  investigator in the Zuma case was Senior Special Investigator  (SSI) Johan du Plooy. He reports to a Chief Special Investigator (CSI) who in turn reports to the Investigating Director, Thanda Mngwengwe, who reports to the Provincial head of the DSO, Gerrie Nel, who reports to the Director of the DSO, Leonard McCarthy who reports to the National Director of the NPA. [It might be slightly more complex than that, but that is essentially the case].


McCarthy did not according to the evidence interfere in the investigation itself, only in the process, specifically the timing of the serving of the indictment.

This I say in specific reference to the investigation of Zuma and Thales International after 2005.

Before 2005, specifically in the 2001 to 2003 time period, McCarthy and Ngcuka were up to their eyebrows in the investigation, specially regarding the Arms Deal investigation and more specifically the French leg of the investigation.

McCarthy, Ngcuka and their political boss Peneull Maduna even went to France and meddled with the investigation being undertaken jointly at that stage by Deputy Director of Prosecutions Gerda Ferreira and her counterpart French Investigation Magistrate Edith Boizette.

This interference was so onerous that Ms Boizette eventually had to abandon her investigation under threat from above.

Then the Three Stooges completely cocked up the prosecution of Alain Thetard and Thales International in the most assenine deal ever made in the history of jurisprudence.

All the while Mr Ngcuka was taking a very close and personal involvement in the Arms Deal investigation, especially the corvette combat suite leg and the Logtek/ALE/Conlog leg involving Mr Joe Modise and his closest of friends Armscor Chairman Ron Haywood and Denel Chairman Major-General (For No Good Reason) Ian Deetlefs.

Mr Ngcuka was so interested in the nitty gritty of the investigation that he personally used to drive from Pretoria to pick up Advocate Gerda Ferreira at the Jan Smuts Airport in Benoni after some of her away trips.

I have no hesitation whatsoever in alleging that Mr Ngcuka and Mr McCarthy were acting for Mr Mbeki who had very particular interests in the outcome of the Arms Deal investigation.


When Mr Zuma was deeply implicated in the Arms Deal circa October 2001, Mr Mbeki suddenly found his testicles squeezed equally hard by Mr Zuma regarding his own deeply unlawful involvement.

That was when the "package deal" for bilateral "disimplication" was hatched. This was managed by Ngcuka and McCarthy with the services of day-to-day interlocutor Senior Special Investigator Ivor Powell. That phase ended on Saturday 23 August 2003 when Ngcuka announced that Zuma would not be charged, but that Shaik would be charged.

Things went downhill from there when Ngcuka instructed the prosecuting team to withdraw charges against Thint.

Then there was a very successful prosecution of Schabir Shaik. The vastly majority of evidence was found not only to be admissible, but accepted by the court. Nearly each charge was upheld by the High Court and then by the Supreme Court. The guilty rulings led to huge and successful asset forfeitures to the State. 

After that, everything began to unravel for the NPA.

At every almost turn they were outwitted by themselves and occasionally by Kemp J. Kemp, acting as senior counsel for the Accused. If it were not for a brilliant bit of advocacy by the prosecuting team represented by the incomparable Wim Trengrove SC and some very redoubtable judges in the Supreme Court., it would have all over a long time ago, with no shouting, no waling, no gnashing of teeth, just feeble wimpering.

But Zuma team ratcheted up its act a gear or two and soon found the NPA's M-spot and after just a couple of the gentlest of short sharp rubs had the NPA led by its NDPP glowing in the ecstasy of happy achievement and fulfillment.

Other than the rabble, voting fodder, assorted stooges (some on the podium and some in their intelligence rat holes) and a couple of embedded journalists, the rest of the country reached for their barf buckets.

Collectively South Africans cannot be said to be or to have been "innocent" for generations, even centuries. But Monday 7th April 2009 will stand out for all time as the ultimate pre-meditated injustice.

Some might say alea iacta est ["the die has been cast"]. So Caesar led his army across the River Rubicon.

That is history.

A new history awaits its making.

This die is still spinning.